NIAL Fennelly could have labelled the Taoiseach a liar. The retired Supreme Court judge could have forced the resignation of the elected leader of the country. There was enough circumstantial evidence available to Fennelly’s commission of inquiry to rule that Enda Kenny was not telling the truth.
It would have been a judgement call, based not on verified facts or documents but on an assessment that, on the balance of probabilities, the Taoiseach was not telling the truth about his role in the “retirement” of Garda commissioner Martin Callinan.
But that was never going to happen, and it was also exactly why a person of Mr Fennelly’s standing was chosen to inquire into actions that many believe constituted a major abuse of power for base political reasons.
As the Dáil debates a vote of confidence in Mr Kenny over the Fennelly report, it’s worth examining the process which appears to have got him off the hook. The departure of Mr Callinan from office was highly controversial, and should have been thrashed out in a political forum, such as an Oireachtas committee.
Mr Callinan resigned in March last year after receiving a late-night call from Brian Purcell, then secretary of the Department of Justice. Mr Purcell had been dispatched by Mr Kenny after a crisis meeting over the latest in a line of scandals to hit the gardaí.
The scandal that prompted the late-night call concerned a recently discovered 30-year-old practice of taping phonecalls in regional Garda stations. Whatever about other matters, Mr Callinan bore no culpability for that matter.
Was the commissioner pushed? Did the Taoiseach act outside his power for base political reasons? Is that acceptable in an alleged democracy?
These questions should have been answered in a political forum. They revolve around a political decision. Yet the whole affair was handed over to Fennelly, who was already investigating the tape recording.
What would have been the outcome if an Oireachtas committee had investigated the matter? For one thing, there would have been a procession of witnesses giving accounts of the night in question that conflict with Mr Kenny’s account.
The nub of the issue is whether or not Mr Kenny set in train events designed to have the commissioner vacate his office. The Taoiseach claims he did no such thing. He told Fennelly that in dispatching Mr Purcell to Mr Callinan’s house, he had no intention of putting pressure on the Garda commissioner to resign.
Yet three of the five people who were present at the meeting gave the commission of investigation versions that conflict with that of Mr Kenny. According to Fennelly: “There is sharp controversy as to the substance of the message which Mr Purcell was instructed to impart to the commissioner.
“In brief summary, Mr Purcell says he was asked to convey to Mr Callinan the gravity with which the Taoiseach viewed the matter of the Garda telephone recording systems and to ask him to consider the situation.
This view is largely supported by Mr Shatter and, effectively, by [secretary general of the Department of An Taoiseach Martin] Fraser.
The attorney general and the Taoiseach, on the other hand, say that Mr Purcell, while conveying the gravity of the Taoiseach’s concerns, was also asked to obtain the views of the commissioner.”
It should be noted that had the attorney general formed the view that Mr Purcell was being conveyed to get the commissioner to consider his position, then she would have been obliged to advise the Taoiseach that he was acting outside his powers.
What if all this had been thrashed out in front of a committee? It would undoubtedly have generated huge headlines, major controversy, and acted as a drag on efforts by the Government to put the best foot forward for the next election.
It would have been highly embarrassing for Mr Kenny, and, if it persisted, could well have prompted colleagues to move against him.
Instead, the whole thing was handed over to Mr Fennelly. This bought time for the Taoiseach, but also, crucially, raised the bar. What judge, even one who is retired, was going to make a ruling that would force the resignation of the Taoiseach?
Only if armed with incontrovertible proof would a senior figure schooled in the democratic tenet of the separation of powers cross that divide.
This is not the first time that a senior judge has been appointed to conduct an investigation the result of which could lead to a Taoiseach’s resignation. In 1994, then president of the High Court, the late Liam Hamilton, produced a report that exonerated then taoiseach Albert Reynolds from culpability in the export credit insurance scandal.
Many considered the outcome to be a whitewash. Some pointed out that Judge Hamilton had been placed in an invidious position.
He was in line to be appointed chief justice. Asking him to effectively consider the future of the head of a government, which had the power to appoint him to the top job, was unfair. In any event, he found as he did and was later appointed chief justice.
Mr Fennelly was also placed in an invidious position. His commission didn’t have incontrovertible proof the Taoiseach was lying. If Mr Kenny said he didn’t intend to put pressure on Mr Callinan, it would require the ability to read his mind at the time in order to definitely find against him.
That is a higher standard of proof than that used in criminal court, not to mind civil or fact finding processes. But Mr Kenny would have been well aware of the task being handed to the former judge. In that regard, the Taoiseach got as good an outcome as he could have expected.
The report has provided enough cover to ensure neither his party nor coalition colleagues are minded to take issue with the findings. Everybody can simply turn a blind eye to glaring conflicts and contradictions and move on.
The biggest cost of the whole affair has been to the perception of politics. A recent RTÉ poll found that only 12% of people believe that Mr Kenny is telling the truth about the whole matter. Yet there are no consequences for what the majority obviously see as a blatant abuse of power. Cynicism is the winner.
Instead of answering for his actions, Mr Kenny has availed of the opportunity of the vote of no confidence to gather his troops around him to stick it to the other lot.
The only long-term issue for the Taoiseach is that a growing number of citizens will inevitably not believe a word out of his mouth again, unless it can be backed up by incontrovertible proof.